Authorities in re: Presidential Commissions



When person has been nominated to office by President, confirmed by Senate, and his commission signed by President, with seal of United States affixed thereto, his appointment is complete.


[U.S. v. LeBaron, 60 U.S. 73, 19 How. 73]

[15 L.Ed. 525 (1856), bold emphasis added]



The commissions of judicial officers ... appointed by the President, by and with the advice and consent of the Senate ... shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General.


[5 U.S.C. 2902(c), bold emphasis added]



Federal circuit and district judges are among the “other officers of the United States” required to be nominated by the President by and with the advice and consent of the Senate.


[Thomson v. Robb, 328 S.E.2d 136, 140, hn. 3]

[229 Va. 233 (Va. 1985)]



From this clause [2:2:2] the Constitution must be understood to declare that all offices of the United States, except in cases where the Constitution itself may otherwise provide, shall be established by law.


[U.S. v. Maurice, 2 Brock, U.S., 96]

[26 Fed. Cas. No. 15,747]



... [W]here the law requires a commission to be issued, the person selected is not entitled to the office until the commission issues, and he cannot be legally qualified by taking the required oath until he has received his commission.


[Legerton v. Chambers, 163 P. 678, 32 Cal.App. 601]

[Magruder v. Tuck, 25 Md. 217]

[bold emphasis added]



The commission is in law prima facie proof of the right of the judge to enter on and perform the duties of his office.


[State v. Montague, 130 S.E. 838, 190 N.C. 841]

[Sylvia Lake Co. v. Northern Ore Co., 151 N.E. 158]

[242 N.Y. 144, cert. den. 273 U.S. 695]



It [commission] is the highest and best evidence of his right to the office until, on quo warranto or a proceeding of that nature, is annulled by judicial determination.


[Thompson v. Holt, 52 Ala. 491]

[bold emphasis added]



Without taking the oath prescribed by law, one cannot become a judge either de jure or de facto, and such an individual is without authority to act and his acts as such are void until he has taken the prescribed oath.


[French v. State, 572 S.W.2d 934]

[Brown v. State, 238 S.W.2d 787]



Law requires the judge selected to take an oath of office.


[U.S. ex rel. Scott v. Babb]

[199 F.2d 804 (7th Cir. 1952)]



Appointment was complete upon taking oath.


[Glavey v. U.S., 182 U.S. 595 (1901)]



Judges are required to take oaths.


[7 Op Atty Gen 303]



Oath was prerequisite to compensation of judges.


[7 Op Atty Gen 303]



The salaries of all judges of courts of the United States are due from the date of appointment;  but the party does not become entitled to draw pay until he has entered on the duties of his office, or at least taken his official oath;  for, until then, though under commission, he is not actually in office;  and in some cases, as that of the territorial judges of Oregon, Washington, Kansas, and Nebraska, salary, though due from date of appointment, cannot be drawn until the judge enters on duty in the Territory.

[7 Op Atty Gen 303 supra]



Oath was prerequisite to official duties and salary.


[19 Op Atty Gen 219]





By act of July 11, 1888, chapter 614, the office of chargé d’affaires to Paraguay and Uruguay, the salary of which was $5,000 per annum, was abolished, and provision made for representing the United States there by a minister at $7,500 a year.  B., who at that time held the former office, was on the 11th of August, 1888, appointed minister.  He received his commission at his place of duty on the 3d of October, 1888, and on that latter date took the official oath and entered upon the duties of his office as minister:  Advised that B. is entitled to draw his salary as minister from the 3d of October, 1888, the date on which he qualified for the office and entered upon its duties, and not from the date of his appointment (Aug. 11, 1888).


[19 Op Atty Gen 219 supra]



... [B]ut whatever form of oath is taken, the taking of the oath is a prerequisite to the entering upon the official duties or drawing salary therefor.


[19 Op Atty Gen 221 supra]




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